The 2012 Criminal Injuries Compensation Scheme excluded some applicants with unspent convictions. A and B, both recognised victims of trafficking, argued that applying the exclusion to them without discretion was discriminatory. Their previous offences had no connection with their exploitation.
The applicants had been trafficked and exploited after convictions resulting in custodial sentences. They later sought compensation under the statutory scheme. The sequence mattered because neither applicant had been compelled to commit the earlier offences as a result of trafficking.
The authority refused both applications under paragraph 26 and paragraph 3 of Annex D. Under the rules in issue, a specified unspent conviction required refusal of an award. A different provision allowed discretion for certain lesser convictions.
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They sought judicial review, arguing that the exclusionary rule unjustifiably discriminated against them contrary to article 14 read with article 4. Wilkie J dismissed the claim. The Court of Appeal dismissed their appeal, holding that any discriminatory effect was justified. The Supreme Court granted permission only on the article 14 and article 4 ground. Lord Lloyd-Jones gave the judgment, with which Lady Arden, Lord Hamblen, Lord Burrows and Lord Stephens agreed.
Whether the complaint fell within article 4
Article 14 is not freestanding. It applies only where the subject matter is sufficiently closely connected with a substantive Convention right. The appellants did not have to prove a violation of article 4 itself. Lord Lloyd-Jones found it unnecessary to decide whether article 4 imposes a general duty on states to compensate victims of trafficking carried out by private parties. Even if no such duty exists, the United Kingdom had chosen to extend the Scheme to victims of trafficking, with specific provisions addressing their position. That voluntary measure had a more than tenuous connection with the protection of trafficking victims under article 4. Discrimination in the enjoyment of those benefits therefore fell within the ambit of article 4.
Status and the alleged difference in treatment
The Court held that being a victim of trafficking is an identifiable personal characteristic and an “other status” for article 14. Having an unspent conviction which resulted in a custodial or community sentence is also such a status. That characteristic has consequences under the rehabilitation legislation independently of the Scheme.
The appellants first argued that trafficking victims with relevant unspent convictions should be treated differently from other victims of crime in the same position. They relied on the gravity of trafficking, the vulnerability of its victims, and the possibility that victims may be compelled to commit offences connected with their trafficking. The Court accepted that trafficking is a particularly grave crime, but identified no feature requiring preferential compensation treatment over victims of other serious crimes. Neither the Council of Europe trafficking convention nor the EU Directive requires trafficking victims to receive compensation free from the limiting conditions applied to other applicants. Article 17 of the Directive requires access to existing schemes for victims of intentional violent crime.
The Court was prepared to assume that offending compelled by trafficking might call for different treatment. Neither applicant was in that position. The case therefore did not decide how such a claim would be resolved.
Their alternative comparison was among trafficking victims: those with a relevant unspent conviction are excluded, while other trafficking victims are not. That difference required justification.
Justification
The Court applied the test of whether adoption of the measure was manifestly without reasonable foundation. The Scheme concerns social welfare and the allocation of finite public resources, a field in which a wide margin is appropriate. The instrument had been approved by Parliament after consultation. The status relied on was not a particularly suspect ground such as sex or race.
The consultation explained the aim of directing limited funds, as a taxpayer-funded expression of public sympathy, towards applicants considered blameless and who had not cost society through offending. The appellants accepted that this was a legitimate aim and that the rule was rationally connected to it. They challenged the absence of a discretion for the more serious unspent convictions.
Lord Lloyd-Jones held that a clear rule was justified. Legislation in this field must draw lines, and clear rules promote consistency. The government had considered discretion and retained it for lesser unspent convictions under paragraph 4 of Annex D, while applying an automatic exclusion to custodial and community sentences under paragraph 3. Read as a whole, Annex D is graduated. It distinguishes sentences by seriousness, excludes certain minor road traffic penalties, and applies only while a conviction remains unspent, so that gravity and the passage of time both matter. The measure was no more intrusive than its objective required and struck a fair balance. It was not manifestly without reasonable foundation.
Verdict: The Supreme Court unanimously dismissed the appeal. The automatic exclusion was justified as applied to these claims under article 14 read with article 4. The Court left open whether article 4 independently requires states to compensate victims of trafficking by private parties.
Source: A and B v Criminal Injuries Compensation Authority and another [2021] UKSC 27
